Mogoeng: Judges should fight corruption and avoid being politically correct

For a judge to decisively tackle and root out corruption, they themselves should possess a moral compass that will make them incorruptible. Instead of being politically correct, and fearing to “rock the boat”, judges should uphold their oath of office in their jurisdictions and be willing to die with principles instead of selling out to corrupt elements.

This is what Chief Justice Mogoeng Mogoeng said when he delivered the closing address at the 4th Congress of the Conference of Constitutional Jurisdictions of Africa (CCJA) at the Cape Town International Convention Centre on Wednesday evening. Amukelani Chauke was there.

“We enjoy as judges, as courts in this continent, a singular honour of playing a crucial role in the eradication of corruption.

“But we can only do so if we are not ourselves corrupt.

“It takes the uncorrupted to deal effectively with the corrupt. How effective are the mechanisms in place to root out judges who are corrupt in our jurisdictions? Do we mollycoddle corruption where we come from?”

The CCJA is an independent institution established by constitutional judiciaries in Africa to ensure that the judiciary in each member state supports and deepens democracy by upholding constitutionalism and the rule of law.

The Chief Justice said the onus was on judges from across the continent to always aim to serve the bench with integrity.

He cautioned against judges who appear to tackle the case of an ordinary citizens with integrity while at the same time, making every effort to be softer when taking on cases involving those in positions of power.

One of the most notable judgements that the Chief Justice along with other Justices of the Constitutional Court handed down, was in relation to the manner in which President Jacob Zuma handled the Public Protector’s report on security upgrades at his Nkandla homestead.

In a now watershed judgement delivered by Mogoeng himself, the Constitutional Court ruled at the time that: “The failure by the President to comply with the remedial action taken against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid”.

On Wednesday night, Mogoeng was still as resolute.

“Do we eat from the same dish with the corrupt using our legal expertise to cover up for the wrongs that they are doing?

“Are we afraid of the corrupt focusing only on the small man or the small woman in your endeavour to root out corruption? But when it is the high and mighty, you take cover? We need to be men and women of integrity as was debated during this conference and a solid character should characterise us. We should be predictably honest and principled.

“Then and only then, when the judiciary of this continent in every country is known from afar that this one you cannot corrupt – even if you want to kill him – he or she is like those judges in Ghana, whose bodies were found lying dead somewhere. I believe they died because they were principled.”

The Chief Justice said judges should not try to be politically correct when exercising their judicial duties in their respective countries.

“Let’s not be politically correct. Let us not pretend, let none of us pretend to be doing the right thing when we know that we are in the pockets of either the politicians in the executive or in parliament or even the private sector – who can profile us through their newspapers, their television or radio stations or put money in our pockets or organise free trips for us. It is time to embrace the spirit of our forbearers, the readiness to die for a just cause if death is what must happen to you, just so that African people can stop suffering when their continent is so, so rich. If members of the judiciary are not willing to be used by those who are in the habit of exploiting the economies and the natural resources of our different countries, then Africa has hope,” he said.

He said Judicial independence was key for judges to exercise their duties without their duties being infringed upon.

“This thing of avoiding to offend even when principles are being compromised, are being trampled on explains why Africa is where it is right now. It is important that we are principled through and through. The ‘I don’t want to ruffle the feathers, I don’t want to rock the boat’, that is why we have been colonised for too long and nothing else happened because we didn’t want to ruffle the feathers of those who were colonising Africa.

“Where threats or challenges are experienced by colleagues who operate in a system that does not allow them to voice their frustrations to the political arms of the state, we have to take it as our responsibility as individual jurisdictions, as regional structures and as this body to, without imposing ourselves, find a way to step in. Let us know so that we can find a decent and acceptable way of stepping in because you are not able to fight for yourself.”

He urged judges to always learn from each other and to exchange best practices at all times.

“There are best practices everywhere. It would be a sad day if we come here, [deliver] powerful speeches but we have nothing to take home with us with a view of implementing it.

While judges from non-African countries such as Brazil and Germany pulled out of the conference for reasons that were not made public, the conference attracted about 200 judges from 35 countries within the continent.

On the night, the Chief Justice was elected President of the continental body for the next two years, a position that was previously held by Marie Madeleine Mborantsuo of Gabon.

The Chief Justice also said that the CCJA should also look at introducing and implementing peer review mechanisms for member countries across the continent.

“We are the ultimate guardians of constitutions wherever we operate as courts. We have the rare honour of ensuring that those members of the executive and the legislature carry out their constitutional obligations as dutifully as the constitution requires of them.

As we know that no constitution and no law self-actualises. I went to one country, very wealthy, beautiful constitution, but nothing is being done in terms of the constitution. It is just a make belief. They have the judiciary, Constitutional Court, Supreme Court, they are well funded, beautiful buildings, but it is just a political state – it is a PR exercise. Nothing tangible is being done for the good of the many people who are suffering. That’s hypocrisy from where I am standing.

“We must consider implementing formal or informal peer review mechanisms as the judiciary. We mustn’t allow for anybody to impose anything on us. We mustn’t police each other, but it has got to be up to us to say to a colleague who is veering off a correct path to say but this is not right.

“I know in one country in East Africa, colleagues form jurisdictions and say but what you are doing is not right. I know we did it in Southern Africa when a particular colleague was not doing the right thing, we said but what you are doing is not right,” he said. – RealPolitik